Nationality discrimination at work

Posted7 August 2018

Gannons supported a client who had faced discrimination at work over his nationality.

Our client faced nationality discrimination at work. He was turned down for promotion in favour of less qualified foreign nationals, paid less than his foreign peers and then selected for redundancy. This was a form of race discrimination.

Securing a settlement

We secured a settlement payment in excess of three years’ pay for our client. We also advised him on the most tax efficient way to structure the settlement agreement.

Threat of the Employment Tribunal

In order to achieve such a result, we did have to file a claim in the Employment Tribunal. We withdrew the claim, however, when we settled the case before the hearing date set by the Employment Tribunal. We secured our costs which were paid by the employer as part of the settlement.

Arriving at a settlement – reviewing the initial offer

Our client came to us having received a redundancy settlement agreement. We discussed the settlement agreement and realised the case was not straightforward.

Gathering evidence

We set about reviewing the evidence to see whether it provided evidence of discrimination. This exercise included submitting a discrimination questionnaire to the employer in the form prescribed under the relevant legislation.

Then we reviewed the evidence to see if the employer had carried out a proper selection for redundancy. We also raised the question of whether our client had legal expense insurance as part of his mortgage or banking arrangements.

Leveraging a better settlement

Often employers think that employees have no option but to except what’s on offer. However, court action may be worth considering. Particularly where the employee is a senior executive on a sizeable salary with benefits or where there is a case for discrimination.

Proof of nationality or race discrimination

Our client instructed us only after he had been selected for redundancy. Like many employees, he had been reluctant to take action against his employer any earlier for fear of losing his job. However, he had come to believe that UK employees suffered discrimination compared to their foreign national equivalents.

Methods of discrimination

The company discriminated against the UK employees in a number of ways. They were paid less in terms of salary and bonuses for performing the same role as their foreign counterparts. They also, were not being offered the same opportunities as the foreign national counterparts for training and exposure to better experience. Additionally, they were being turned down for promotions that they were better suited for compared to foreign nationals.

Obtaining the evidence

Like many employees, our client lacked hard evidence. In order to obtain the evidence, we advised looking at the matter from different angles, not just those related to pay.

Training

We established what training our client had received, compared with similar employees. Our client had kept a record of training courses. From this record we obtained information which showed that the same level of training was not provided to all employees.

Appraisals and development

We considered the appraisal system and input into development our client received. The company had not mapped out a career path for our client. However, foreign nationals did have career path plans. On many occasions our client had not received appraisals at all, whereas others had.

Pay structure, banding, and bonus payments

We sought to obtain details on salary and bonus payments. We also wanted to obtain details on the banding and ranking system used to determine pay across the group. This information was the most difficult to obtain. We obtained it through an order for discovery in the Employment Tribunal.

Unfair selection for redundancy

We also established that the employer had unfairly selected our client for redundancy after he had raised a grievance into his pay and terms. The employer also used biased indicators for the redundancy pool. The employer designed the indicators to achieve the result they required. Therefore they selected the pool of employees wrongfully. It became clear that the employer’s motivation was not genuine redundancy. It was a desire to push our client out as cheaply as possible. Such motives are not unusual with employers.

Obtaining information from the employer

Many employers are reluctant to disclose pay and bonus information, particularly where it concerns their methodology and rationale for decisions.

We pressed the employer to disclose details. However, we received only scant details that did not reveal core information. As such, we then commenced proceedings in the Employment Tribunal as we knew we could request an order for disclosure from them. The Employment Tribunal agreed to the order. The employer made attempts to settle the case before the deadline for disclosure.

How we assessed the compensation

Compensation for discrimination is uncapped and can run into hundreds of thousands of pounds. Using our experience of discrimination cases, we provided an assessment of the likely level of compensation. We considered the following factors: financial losses to our client in terms of salary and bonuses; financial losses suffered due to a failure to promote; future losses given that he would need to find work; and compensation for injury to feelings.

Negotiating a settlement agreement

The employer issued a settlement agreement. There were several offers all expressed as final before we reached the final offer.

The settlement agreement

We finally secured a settlement for our client of in excess of three years net pay taking into account the lower pay rate he had received; the stress he had suffered; and his unfair selection for redundancy.

The settlement also included an agreed reference. The reference had to be provided both in writing and verbally. The employer was forced into an indemnity to help ensure compliance. This meant that our client could move on and more easily find a new job.

Once we agreed a settlement then we withdrew proceedings in the Employment Tribunal.

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